Stop Running “Deliberate” T by Stephen Babb

A menace is once again sweeping across the land, this time in the form of a topicality argument suggesting the use of deadly force is only “deliberate” if it is slow and unhurried. The implication is that the only topical use of deadly force is that which a victim plans thoroughly in pre-meditated fashion. These interpretations are meant to problematize the 1AC’s ability to justify deadly force on self-defense grounds (since an of self-defense would supposedly involve no planning, forethought, or consideration whatsoever).
To say nothing of how annoying it is to watch a meaningful debate get sidetracked by desperate strategic misgivings, this is also just a bad argument.

First, it overlooks two usages consistently found in the definitions of “deliberate”: (1) intentional or aware of consequences or (2) resulting from careful consideration. The notion that a 1AC should interpret “deliberate” according to these usages as well as the third (“unhurried,” etc.) is a bizarre burden, especially when it makes no sense to use a word simultaneously in three different ways. The most obvious rejoinder to these arguments, then, is that the 1AC’s interpretation is perfectly consistent with a common usage of “deliberate,” because no one is advocating “accidental” self-defense measures, and nor is anyone suggesting that a victim pressed into using deadly force is unaware of the potential consequences.

Second, even if the 1AC must defend situations in which there was careful prior consideration of deadly force, there’s no reason to believe this consideration is anything other than contingent planning. For example, victims of repeated abuse may speculate about what they would do should an ongoing threat escalate into an imminent danger of serious bodily harm or death. This deliberation could continue for months or longer, and yet in the midst of a dangerous confrontation, planned self-defense measures may come into effect. In other words, the “imminence” of a self-defense situation shouldn’t be mutually exclusive with prior contingency planning. It even reasons that victims may acquire lethal weapons so that they can defend themselves with deadly force when the need arises. While this involves planning, it doesn’t automatically entail that the victim is killing an abuser in his sleep (or some similar “elective” killing).

Third, it doesn’t even make sense to describe the “use of deadly force” as slow and unhurried. Remember, this is the phrase modified by “deliberate.” Suggesting that the use of force must be interpreted as “slow” and “unhurried” would laughably leave the 1AC with torture as its core ground (or otherwise, some incredibly inefficient method for killing). While there may indeed be scenarios in which a victim of domestic abuse opts to “slowly” poison or otherwise kill an abuser over a course of time, I highly doubt this is the most sensible usage of “deliberate.” I certainly understand interpretations that suggest “deliberate” be used as “premeditated,” but there’s no reason to believe premeditated action results exclusively from “slow” or “unhurried” consideration. When “deliberate” is used in this way, it’s typically a reference to someone walking or moving at a “slow” and “unhurried” pace. Given that this would make no sense when describing the use of deadly force, it’s a safer assumption for the AC to defend the intentional use of deadly force (at best) or the premeditated use of deadly force (at worst).

These interpretations also appear to be most consistent with the empirical data that suggest the vast majority of situations in which a victim kills an abuser occur during confrontations (rather than while the abuser is sleeping, for example). This should inform what topic literature we believe to be in fact “at the core” of the topic. It would make no sense to ignore a more frequent and socially pressing moral question so that we can discuss the comparatively few instances in which victims kill their abusers absent an imminent threat.

Accordingly, while it may be the case that 1ACs should be willing to defend situations in which there isn’t an imminent threat, they should not be forced into defending these situations exclusively. The best distribution of ground would allow for 1ACs to generate offense predicated upon imminent threats while also having to accept the consequences of a moral rule allowing for killing when there is no imminent threat. Perhaps the 1AC justifies an overly broad moral rule, and perhaps the 1NC is correct to prefer a more limited rule that only accounts for imminent threats. But, this is a reason why AFF ground is should be more expansive than some 1ACs contend. The problem with AFF interpretations isn’t that they are allowed to use self-defense as a justification; the problem is that they are skirting their responsibility to defend the minority of circumstances in which there is no imminent threat.

Again, let empirics be your guide. While the 1AC should be afforded the advantages associated with self-defense situations, they should also be burdened by those comparatively more rare situations in which there are no imminent threat to trigger traditional notions of self-defense. This means that the 1NC can lobby for access to this ground, but they must weigh the implications of killing without imminent threat (in fewer circumstances) against the advantages of self-defense (the majority of circumstances). I believe that this is the most equitable and pedagogically sound distribution of ground. While I’m sensitive to the NC’s position that self-defense is “impossible to answer,” I think it is equally difficult to credibly affirm in a world where “self-defense” is entirely off the table. There must be some form of compromise, and I’d encourage debaters to pursue reasonable solutions (ideally before the round or during cross-examination) and exploring community norms on this question might make that effort a bit easier. At the very least, it will be a sad state of affairs indeed if the TOC is beset by these kinds of theoretical exchanges at the expense of topic-focused debate.

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I do believe that the affirmative must be able to defend non-confrontational killings as an important part of the resolutional ground. However, to try and cut out self-defense killing is just as illegitimate for the negative as trying to cut out non-confrontational killings is for the affirmative.As an example:If I were in a situation where I am being assaulted by someone wielding a deadly weapon, the fact that I recognize that the assailant has a deadly weapon, and decide to use deadly force to prevent the attack makes my use of deadly force deliberate. However, that decision is in no way slow or unhurried. I in no way planned to kill that person before I see the weapon, or any random assailant that might attack me. My decision was made in the moment, and was the result of exigent circumstances, but was still deliberate. I agree with Steven here, there is plenty of ground to go around here if people will stop trying to abdicate their burdens and make it impossible for the other side to meet theirs.

Again, I’d be willing to accept the 1AC must also defend use of DF in non-controntational situations, just not exclusively non-confrontational situations. I’m advocating a more inclusive ground distribution.I don’t think it’s entirely fair to suggest that planning prior to confrontation is contrived. If you look at resources directed at victims of domestic abuse, it’s not unusual to encourage those victims to think through self-defense measures in advance… not just from a practical perspective, but in the spirit “reflection” the People v. Thomas decision describes. I can reflect upon something and make a provisional decision about it without an event immediately triggering the execution of that decision. I’d suspect that’s more of a norm than contrived scenario.

Also, I’m not sure anything in the decision implies a slowly made decision. Someone can maturely reflect upon/weigh consequences without pretty briefly. If a confrontation appears to be escalating out of control, a threat may be imminent in a morally relevant sense even if the attacker isn’t lunging at you with a deadly weapon.

As far the empirics issue, if it begs the question of what scenarios are topical, then I think debate is left in a sad state. As “unbeatable” as self-defense arguments apparently are, I think having to defend killing someone in their sleep is equally as absurd. I hear that was the intent behind the topic, but that’s just unfortunate.

I also don’t think defending one’s self in the midst of a confrontation is incontestable. Again, I don’t think the AC gets to assume a gun’s pointed at the victim’s head. Confrontations can carry on for a long time, they can escalate, and danger may be reasonably perceived to be on the horizon without being imminent according to traditional conceptions of self-defense. In large part, I think a core part of the debate should be precisely: Should imminence be redefined in these situations (which uniquely rob victims of an ordinary ability to retreat for a number of reasons). I also think proportionality arguments are still 100% in play.

I tend to agree with Adam on the division of ground question. Most neg lit centers on limits on the right to self-defense like proportionality, imminence and necessity. All of those args go out the window if the aff gets confrontational killings and the neg is left with self-defense bad. That is awful ground.Also, I think there are ways of framing the T debate that do not rely on the "unhurried" standard that you have a problem with. For example People v. Wolff is cited in many definitions of deliberate killing and it sets a standard "maturely and meaningfully reflect[ing]." People v. Thomas says that to deliberately kill means "to weigh in the mind; to consider the reasons for and against; to consider maturely; reflect upon … " I think there is a decent argument to be made that these interpretations exclude confrontational killings except in the most contrived examples where someone plans to kill during future confrontations. The point about the majority of killings empirically occurring during a confrontation just seems to beg the question of whether those killings should be considered part of the topic lit in the first place. It seems plausible to me that the purpose of deliberate in the resolution is to limit the topic to a small subset of killings that are the most controversial, while excluding the more numerous but commonly accepted killings.

Oh and btw on the issue of prior provisional/contingent deliberation being contrived.. I honestly think it would be bizarre for a victim of repeated abuse to NOT think through whether or not they’d be willing to use deadly force. I suspect the thought cross one’s mind MANY times before a particular encounter triggers deadly force.

Adam Torson

I think Babb is probably right on this, but just to play devil's advocate:I can see plausible arguments which say that the core of topic literature is non-confrontational killing. Self-defense in confrontational situations is almost universally accepted as permissible (at least from a legal point of view – perhaps 'moral' gives the neg more ground). If "deliberate" and perhaps "repeated" together narrow the resolution to non-confrontational killings, Aff argues that the general permission to use deadly force in self-defense extends to these situations in the unique context of domestic violence, and neg argues that it is inappropriate to so extend the self-defense doctine. That actually sounds like a pretty reasonable distribution of ground to me. Thoughts?

It is flat-out incorrect to claim that deadly self-defense in confrontational situations is "almost universally accepted" as "legally permissible." Self-defense is an affirmative defense which is qualified by a number of different restrictions, the most common, powerful, and relevant of which is the requirement that deadly self-defense has to be a reaction to an objectively and subjectively reasonable belief that one will imminently suffer death or grievous bodily harm. Imminence is an important qualifier because it limits the scope of permissible self-defense to situations in which a person is immediately confronted with the prospect of death–it does not extend even to situations where one reasonably believes that death or serious bodily harm is inevitable given an escalating pattern of domestic violence. Confrontation is probably a necessary condition of deadly self-defense, but it is by no means a sufficient justification to use it.As for the "deliberate" T argument, I think that it makes little sense given the legal context of the topic. Usually the term "deliberate" refers to killing that is premeditated (as opposed to killing that occurs in the heat of passion, under duress, in self-defense, or as a result of an extreme emotional disturbance). Deliberation seems to be a question that bears upon the intent with which one commits the crime of homicide, not one that bears upon the manner in which one commits the crime. It seems like that the aff needs to justify either (a) that self-defense is justified despite the fact that the threat is not imminent (although it may be inevitable) and/or (b) that the evil of repeated domestic violence is so great that it "justifies" homicide.

Adam Torson

Alex is right to say that legal self-defense claims are subject to various restrictions. My assumption was that confrontational killing situations tend to be characterized by imminence in the context of the resolution – a lot of the lit essentially distinguishes confrontational from non-confrontational situations by the presence of imminence as traditionally conceived. My only point is that it seems like the resolution is about whether to expand the existing self-defense doctrine. If neg has to prove that victims don't have the right to self-defense even in situations where we have always accepted self-defense (subjectively and objectively imminent, force is proportional, claimant is not the original aggressor and has no opportunity to retreat, etc.), they have a tough row to hoe.

Btw, I think that one thing this view conflates is confrontation with "self-defense" as a legal concept. I think the question of the topic is precisely whether or not ongoing abuse and/or a confrontation produced thereby are sufficient grounds for treating it as a self-defense situation. The 1N should have to make arguments that those grounds are insufficient rather than just refusing to debate situations that are far more common than killing people in their sleep.

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